English votes for English laws Standing Orders: interim report Contents

1 The Government’s proposals and our review

1.The Government has published proposals to change the Standing Orders of the House to deliver an outcome commonly known as ‘English votes for English laws’.1 Under these proposals certain elements of future government-sponsored draft legislation which are to apply only to England and Wales (or sometimes only to England) may become law only with the consent of Members representing constituencies located in those parts of the UK.

2.So far as primary legislation (bills paving the way to Acts of Parliament) is concerned, where a whole Bill would be deemed to relate exclusively to England, any public bill committee to which it were committed would have its membership restricted to Members representing constituencies in England. But the Government’s proposals would principally have binding effect by the introduction of a novel stage in the legislative process following on from the current report stage (denoted in the proposals as a “Legislative Grand Committee”) to allow Members representing constituencies in England, or England and Wales, to consent to, or withhold consent from, proposals with a specified territorial application. For brevity, we have termed this the Consent Stage. Without that consent, these elements of legislation would not be able to be submitted to the whole House at Third Reading, and could not therefore be included in any Bill passed by the House without the consent of the relevant part of the House.

3.Members from outside England, or outside England and Wales, cannot table or move amendments to consent motions at the Consent Stage as they cannot be members of the Legislative Grand Committee.

4.Amendments proposed by the House of Lords to Bills with distinct territorial application would, to pass the Commons, require the assent of not only a majority of members of the House, but also a majority of Members representing constituencies in England, or England and Wales.

5.A similar requirement for a “double majority” would be required for delegated legislation (normally in the form of draft statutory instruments) subject to the affirmative procedure in order to be deemed to have been approved by the House.

6.In the case of both primary and secondary legislative proposals, the decision as to whether these would be subject to the new procedures would rest, ultimately, with the Speaker of the House of Commons. He would be required to apply two tests: the first relating to whether the legislative proposal would have a distinct and limited territorial effect within the UK; the second as to whether the relevant devolved jurisdictions outside that limit would be lawfully competent to legislate in the same area if they chose to do so. The Speaker’s decisions would be communicated through a process of “certification”: once certified, those proposals would fall to be subject to the new requirements proposed in the draft standing orders. The process of certification may be required at several stages of the career of a legislative proposal and, perhaps most controversially, would also apply to proposed changes made by the Lords to Bills passed by this House.

7.This report gives the initial and interim findings of our review of these proposals, in order to inform colleagues in advance of any debate and vote. This report relates to the revised proposals published by the Government on 14 July 2015.

8.We examine below the procedure whereby Bills and instruments would be certified as eligible for the proposed new procedures and the procedures themselves. We have not considered in any detail the proposed arrangements relating to Budget resolutions and Finance Bills which the Leader of the House told us could apply to consideration of measures arising from the Financial Statement and Budget Report as early as 2016.2 Should the devolution of powers over income tax to the Scottish Parliament proposed in the Scotland Bill proceed, the principles and practicalities of such arrangements will require close scrutiny.

Introduction of the Government’s proposals

9.The Government’s intention to introduce these proposals was signalled in the Queen’s Speech:

My government will bring forward changes to the standing orders of the House of Commons. These changes will create fairer procedures to ensure that decisions affecting England, or England and Wales, can be taken only with the consent of the majority of Members of Parliament representing constituencies in those parts of our United Kingdom.3

10.The policy had previously been set out in the Conservative Party Manifesto for the 2015 General Election and in rather more detail in the Conservative Party’s English Manifesto for that election. 4

11.The Leader of the House published his proposals on 2 July 2015 and made an oral statement to the House.5 On 7 July Rt Hon Alistair Carmichael MP secured an emergency debate under Standing Order No. 24 on the means the Government was using to give effect to its policy.6

12.On 14 July the Government published revised proposals intended to address concerns that Members representing constituencies outside England (or England and Wales) would be unable to vote on the consequences for public expenditure in other parts of the UK of legislation applying to England (or England and Wales) only.7

13.On 15 July the Leader of the House introduced a general debate on the Government’s proposals and indicated that a further day of debate would be held before the House would be invited to vote on any proposals.8 We also note, for completeness, the debate in the House of Lords on 16 July arising on a question tabled by Lord Butler of Brockwell, and the subsequent debate and vote in the House of Lords on the proposals on 21 July 2015, which resulted in a Message to this House from the other.9

14.The Government has made clear that its proposals are put forward on an experimental basis, and that it will carry out a review of their operation at the end of the 2015–16 session.10 If they proceed, so shall we.

The Committee’s initial review

15.On 2 July, the Leader of the House had indicated that he had written to the Chair of the Procedure Committee (who had been elected on 17 June 2015) to invite this Committee to scrutinise the proposals and to undertake a ‘technical assessment’ of the measures during the first year of their operation.11 However, he initially appeared intent on introducing his proposals before the other members of this Committee had been appointed.12 The pause in the process following publication of the revised proposals on 14 July has allowed us an opportunity to reflect, with the help of expert witnesses, on the proposals.

16.At our first meeting of this Parliament, held on 14 July, we therefore resolved to conduct an initial review, focusing on the clarity of the new procedures; the arrangements for certification of Bills and instruments to which the new procedures are intended to apply; the impact of the new procedures on existing arrangements for considering legislation in the House, particularly at Report stage and Third Reading; and the likely impact of the new procedures on future legislative drafting.13

17.In the debates in the House, and in evidence we have taken, several Members have expressed fundamental and principled objections to the proposals.14 While we acknowledge these views, our role in this inquiry has been to examine whether the Government’s proposals are sufficiently comprehensible to work as part of the House’s procedures for the consideration of legislation.

18.The question has also been raised within and without the House (and was the substantive grounds for the holding of the emergency debate on 7 July) as to whether standing orders are the proper vehicle for effecting a change of this magnitude. Again, we have quite deliberately eschewed offering an opinion on this question, but it is perhaps worth recording that there was agreement amongst many of our witnesses that trying to achieve these aims through legislation would risk a number of potentially undesirable consequences.15 The most obvious advantage to all sides of the argument for using standing orders at this stage is that they are easily amended, easily set aside with the consent of a majority of the House, and well-suited to the kind of tinkering, or indeed wholesale change, that is implicit in their status as experimental. At least for the duration of the experiment, this vehicle may be the least risky approach to delivering an outcome which, as we recognise, is itself quite energetically contested. We note that the Leader of the House has not ruled out seeking to achieve the Government’s policy objective through primary legislation.16

19.In this report we have not, therefore, considered the overall principle behind the Government’s policy, any alternative means of delivering it, or the broader implications of the proposals for the UK’s constitutional settlement. We have focused solely on the proposals that are before the House and their practicality in procedural terms. That we think is the appropriate task of this committee; other committees may choose to examine the wider questions.17

20.Our inquiry has necessarily been very compressed at this stage. While a formal call for evidence was not issued, interested parties were invited to contribute written submissions to our review. We received six written submissions, and took oral evidence from Sir William McKay KCB, a former Clerk of the House and the former Chairman of the Commission on the consequences of devolution for the House of Commons; Professor Adam Tomkins, John Millar Professor of Public Law at the University of Glasgow and a member of the Smith Commission; Pete Wishart MP, SNP Shadow Leader of the House; Angela Eagle MP, then Shadow Leader of the House; and Rt Hon Chris Grayling MP, Leader of the House and David Cook CB of the Office of Parliamentary Counsel. We are most grateful to all those who made submissions or gave oral evidence.18

21.The Chair also wrote to the presiding officers of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to ask for information on the procedures which each presiding officer undertakes prior to certifying that draft legislation presented to each legislature falls within its legislative competence. We are most grateful for the replies we received.19

22.Further time is required to undertake a full analysis of the proposals: this report can only be interim and provisional.

1 The proposals also provide for English and Welsh votes on English and Welsh laws, and, on occasion, English, Welsh and Northern Ireland votes on English, Welsh and Northern Ireland laws (although the latter provision applies almost exclusively to taxation).

2 Q 146

3 HC Deb, 27 May 2015, col 32

4 The Conservative Party Manifesto 2015, p 70; The Conservative Party English Manifesto 2015, p. 9

6 HC Deb, 7 July 2015, col 185–239

8 HC Deb, 15 July 2015, cols 936–1049

9 HL Deb, 21 July 2015, col 1007–1031, and 16 July 2015, col 754–766. The Lords Message of 21 July read as follows:
“That it is expedient that a joint committee of Lords and Commons be appointed to consider and report on the constitutional implications of the Government’s 14 July revised proposals to change the Standing Orders of the House of Commons in order to give effect to English Votes for English Laws, and that the committee should report on the proposals by 30 March 2016.”

10 HC Deb, 2 July 2015, col. 1648

11 Ibid.

12 The Chair of the Committee, Mr Charles Walker, was elected unopposed by the House on 17 June 2015. The Committee of Selection proposed the membership of the Committee on 9 July, and the House approved the proposed membership on 13 July.

13Proposed English votes for English laws Standing Orders”, Procedure Committee press notice, 16 July 2015.

14 For example, Pete Wishart MP (Q 70) and Angela Eagle MP (Q 90)

15 EVL 05, para 14 (Sir William McKay); EVL 02, para 20 (Professor Tomkins)

16 HC Deb, 2 July 2015, col 1655

17 The Scottish Affairs Committee has held two sessions of oral evidence on the issue to date, and the Public Administration and Constitutional Affairs Committee has commenced an inquiry into English Votes for English Laws and the Future of the Union.

18 The oral evidence taken and written evidence received is listed at the end of this Report.